Miller County Circuit Judge Kirk Johnson accused Texarkana, Ark., city officials of "undermining the will of the people" Monday afternoon as he lamented the possible fall-out of a lawsuit concerning pay parity for police officers.
The lawsuit, filed by Texarkana lawyer Brent Langdon in December 2017 on behalf of more than 80 Texarkana, Ark., residents, complains that money generated through a sales and use tax imposed by voters through city ordinances in 1995 and 1996 isn't being used for its intended purpose -to keep salaries of police and fire personnel in Texarkana, Ark., on par with those in its sister city.
The city's lawyers fired back with arguments that the tax is unconstitutional, pointing to case law and state Attorney General opinions, which found that only the city's board has the authority to set salaries and that the ordinance essentially gives that power to the City of Texarkana, Texas.
A hearing to address two defense motions was held Monday afternoon at the Miller County courthouse.
Johnson reminded the city's lawyer, Ralph Ohm of Hot Springs, of the conditions which led to the passage of the ordinances and imposition of the tax. Johnson said that, in decades past, the City of Texarkana, Ark., would screen, hire and pay for academy training for recruits who would take higher paying jobs in Texarkana, Texas, after gaining a couple of years experience.
"If this court finds this unconstitutional it appears to me that a number of things may occur. We may lose police officers. We may lose firefighters. We may lose money that would have gone to repair streets. We may need to lay off police officers, may need to lay off firefighters. We may need to lay off administrators," Johnson said.
Johnson asked the parties to consider what could happen if the ordinance, which has allowed for collection of the tax for approximately 22 years, is found unconstitutional. Last year the tax generated about $2.26 million in revenue. Johnson noted that in its filings, the city expressed a desire to continue collecting the tax it wants declared unconstitutional.
"That's absurd," Johnson said. "So the city, by bringing up this ordinance and alleging its unconstitutional, is going to be giving up $2.6 million in revenue? My grandmother had a phrase for that: biting off your nose to spite your face."
Ohm conceded that finding the tax unconstitutional might mean an end to the city's ability to collect it under the existing ordinances but expressed hope that a new tax might be implemented in the future to generate funds for fire and police that excludes a parity with Texarkana, Texas, requirement.
"Nobody believes we're going to strike down parity and keep the sales tax," Ohm said. "The baby and the bath water and everything else goes out."
Langdon accused the city of wanting to "cherry pick" its way through the ordinances and of wanting to "have their cake and eat it too."
Langdon argued that if the money collected from the tax had been put in a fund to be used exclusively for police and fire as the ordinance requires, there would be more than enough to keep Arkansas pay equal with Texas.
"Where did that money go? Into the general fund," Langdon said. "I submit it's not the plaintiff's fault. It's the city manager's fault to collect this amount of money and not set it aside to be used for the exact purpose as it was passed by the citizens to be used."
Langdon said he hopes public outcry will cause city leaders to address pay parity, something he said they have purposely avoided.
Ohm disagreed with Langdon's assessment of how the money has been spent.
"Every penny was used to pay salaries for fire and/or police. The funds were used for their intended purpose. There has been no misappropriation of funds," Ohm said. "The problem is there is just not enough money."
Ohm mentioned that while the city struggles to maintain parity for police and fire employees, staff who work in other departments, such as sanitation or road maintenance, are left behind.
Johnson said he would take the defense's motion for summary judgment -a request to have the judge essentially rule in the city's favor based on the law -under advisement as he considers filings by both sides and undertakes his own legal research.
"I just don't see the logic of the board or city manager giving up $2.26 million per year when all I hear is that the city is in dire financial straits. I'm afraid the city manager is going to engineer the worst fiscal train wreck in the history of Texarkana, Ark.," Johnson said. "It appears to me, before I render an opinion, that somebody needs to take control of the wheel of this out-of-control train to accomplish what the people wanted."
Johnson described the city's challenge to the constitutionality of the ordinances as "a slap in the face to every person who voted to try to give this city something they would be proud of."
Before hearing arguments concerning the city's motion for summary judgment, Johnson considered a motion asking him to step down from the case and allow the Arkansas Supreme Court to appoint a different judge.
Johnson is one of three judges who serves the 8th Judicial District South which encompasses Miller and Lafayette Counties. The district's other two circuit judges -Brent Haltom and Carlton Jones -previously entered recusals in the case.
Ohm said he does not question the "fairness of the court" but worries there could be an appearance of impropriety because of Johnson's relationships with a named plaintiff and others. Langdon said he doesn't believe a recusal is necessary as there is no evidence that Johnson or his friends would economically benefit from his rulings.
Johnson noted that the defense is particularly concerned about his life-long friendship with one of the plaintiffs.
"If he were going to be a witness or had some financial interest, I would recuse in a minute," Johnson said. "Frankly, if the court had recognized prior to our status conference, the damage that this case could do to the city, I might have grabbed onto that lifeboat to get out of this case."
Johnson denied the motion to remove himself from the case early in the hearing and addressed his role again shortly before adjourning.
"You can be sure that I am going to rule exactly the way the law says I have to," Johnson said.